Author: Vasil Ivanov
Global Campus of Human Rights, University of Graz, Austria

Introduction:

Unaccompanied minors are particularly vulnerable to trafficking because they need to navigate their fleeing journey by themselves. This article will look at part of the international legal framework for dealing with the trafficking of unaccompanied minors. It will do so by looking into the relevant UN instruments.

In this article, the author considers two legal instruments. First is the Protocol against the Smuggling of Migrants by Land, Sea, and Air (referred to as Smuggling of Migrants Protocol hereafter). Second is the Protocol to Prevent, Suppress and Punish Trafficking in Persons (referred to as Trafficking in Persons Protocol hereafter). Both of these Protocols supplement the UN Convention against Transnational Organized Crime.

Protection to Unaccompanied Minors in Smuggling of Migrants Protocol:

Article 16(1) of this protocol ensures the preservation and protection of the rights of smuggled migrants under international law. It requires that States parties take ‘all appropriate measures, including legislation if necessary, to preserve and protect the rights of persons who have been the object of conduct set forth in article 6 of this Protocol’.

Articles 16(2)-(4) put several obligations on States parties to assist the migrants in such situations. These provisions aim to do standard-setting for officials who deal with smuggled migrants. They further aim to deter conduct on the part of offenders that involves danger or degradation to the migrants.

State Obligations:

Article 16(2) obliges States parties to protect smuggled migrants from violence. This is particularly so where such violence is a result of their being smuggled migrants. This would include situations where migrants are endangered by modes of transportation. It also includes situations of exploitation during the smuggling process. There is little guidance as to the content or requirements of ‘appropriate measures’ that State parties must take. As such, it is difficult to identify precisely the reach of Article 16(2), or at what point a breach of the obligation would occur.

Article 16(3) calls on States parties to afford appropriate assistance to smuggled migrants whose lives or safety are endangered. The Legislative Guides assist in the domestic implementation of the Protocols by States parties. The Guides state that Article 16(3) imposes a new ‘obligation’ on States to provide ‘basic assistance’. Although, it explicitly precludes the existence of a corresponding right. As with Article 16(2), the method of implementation is at the discretion of States parties.

The Model Law against the Smuggling of Migrants is another document which also assists domestic implementation. It suggests a number of measures that may stem from the Article 16(3) obligation. For example, the provision of urgent medical care, access to food and shelter, and protection of physical security.[1]

Trafficking in Persons Protocol and Unaccompanied Minors:

The Trafficking in Persons Protocol provides unaccompanied minors with a more tailored protection from trafficking in human beings. It is probably due to its specific emphasis on trafficking in persons generally.

Protection and assistance for victims of trafficking can be found under Article 2.  Various provisions throughout the Protocol serve this aim, including measures connected to material assistance and accommodation in Article 6.

In comparison to the Smuggling of Migrants Protocol, one can see an acknowledgement of the situation of children in the Trafficking in Persons Protocol and its supplementary materials (not least in its full title). OHCHR also provides guidelines for the treatment of child victims of trafficking. [2]

Under Article 6(3) States parties have to consider implementing measures to provide for the social, psychological and physical recovery of victims of trafficking in persons. Further, Article 6(5) requires that States parties ‘endeavour to provide for the physical safety of victims of trafficking’. [3] None of the provisions are framed in mandatory language.

When applying articles 6(3) and (5), States parties should take into account the special needs of children[4]. These may include appropriate housing, education, and care.[5] The Legislative Guides recommend appointing a specially trained guardian for child victims. This is an urgent step until the identification and implementation of an appropriate solution. Where the age of a victim of trafficking is uncertain, they should be treated as a child.

Criticisms:

Both these Protocols are a vital step forward in addressing migrant smuggling and human trafficking. They put an emphasis on criminalization and prevention of each crime. Even though they have provided effective and consistent guidance to smuggling and trafficking for individual states, there have been criticisms against them as well:

• In particular, there have been criticisms towards how ‘smuggled migrant’ and ‘victim of trafficking’ are defined within the Protocols, with concerns raised about their conceptual vagueness and failure to acknowledge the often blurred connection between these crimes in reality.[6] This indeterminacy may eventually lead to States Parties identifying irregular migrants as smuggled, even when their actual status is unclear. This is particularly problematic in cases of people who are given ‘smuggled migrant’ status, but who have suffered exploitation or abuse identical to trafficking. As a result, the latter may be denied the protection and status of trafficked victims given to trafficked people. 
• A further criticism revolves around the Protocols’ negligence of substantive rights and protection measures, including many that are crucial for protecting smuggled and trafficked unaccompanied minors effectively.[7] They include the best interests of the child principle, the right not to be detained, [8] to have legal representation, and against removal. Even though these principles can be found in other international instruments their effectiveness is compromised by the criminal justice focus of the Protocols.
• The latter issue can be particularly observed in cases of minors who have been smuggled because they are often framed as complicit participants in smuggling, as illegal immigrants, and as a ‘problem’ to be solved through deterrence and border protection strategies.

Conclusion:

Due to the failure of both Protocols to make a proper distinction between smuggled and trafficked persons, the absence of substantive protection provisions, and the fact that unaccompanied minors are particularly vulnerable in the irregular migration process, a coherent, protection-focused approach is necessary. Such an approach should go beyond the smuggled/trafficked dichotomy, and establish a number of rights and protections explicitly applicable to smuggled and trafficked unaccompanied minors equally.

[1] UNODC, Model Law against the Smuggling of Migrants (UN 2010 69)

[2] UNICEF, Guidelines on the Protection of Child Victims of Trafficking (UN 2006).

[3] Convention against Transnational Organized Crime, art 25(1); OHCHR (n 58)  Guideline 8).

[4] Ana Isabel, Perez Cepeda, and Demelsa Benito Sanchez, Trafficking in Human Beings: A Comparative Study of the International Legal Documents (Europa Law Publishing 2014 37),

[5] Trafficking in Person Protocol, Art 6(4).

[6]International Council on Human Rights Policy, 2010

[7] Tom Obokata, ‘Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law’ (2005) 17 International Journal of Refugee Law 394

[8] Unless used as a last resort and for the shortest possible time